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As the objective standard or
norm of morality is the will of God, as that is perceived by right reason, so the subjective norm for each individual is his own
conscience.
In the last resort each man must decide for himself what is right or wrong.
This decision is called conscience.
Conscience is an act of practical judgment of the rightness or wrongness of particular actions.
In this it is distinguished from synderesis on the one hand and moral wisdom or prudence on the other.
SYNDERESIS is the name
given to that faculty whereby we make the broadest judgments on the most general moral issues.
It is little more than our awareness of the distinction between right and wrong, which may be called our moral sense. The kind of
judgment that is made by synderesis is "Good should be done, evil avoided", "One ought to be just, and not
unjust". This very general awareness that one ought to do what is right and avoid what is wrong, is the spark which fires
conscience to order right action in the future, and the "worm" of remorse which gives sting to the condemnation which
conscience pronounces against a past wrong action. Moral wisdom or prudence is speculative and not practical. That is to say, it
is not necessarily concerned with my actions past or future, but with moral problems; it considers and determines the morality of
different classes of actions, or even of particular actions, solely from the point of view of their objective rightness or
wrongness, without reference to their performance by any particular person at any particular time. It is the quality of the
"expert in morals" or the good moral theologian.
But conscience is the act of determining that I ought to
do or not do this action now, or that I was right or wrong in performing that action then.
It is a determining, an act of judgment, for it is my reason making a moral judgment.
It is practical, that is, it is not the abstract question of morality with which it is concerned, but this action here and now, as
something to be done or not done. From this dictate or judgment of conscience the individual has no appeal. For it is his own
reason declaring to him what is, here and now, the will of God. This being so, it is everyone's paramount duty to obey his
conscience, for in so doing he is obeying what he holds to be the will of God, and in disobeying he is going against what he holds
to be the will of God. It is in this sense that conscience is said to be the subjective standard of morality and to be always
binding. For to disobey conscience is deliberately to choose what is recognized as wrong, and to obey is to choose what is
recognized as right. We praise those who obey their consciences, we blame those who do not. Indeed, praise and blame are confined
to this single point. We praise the will that chooses what is presented to it as right, i.e. obeys conscience; we blame the will
that chooses what is presented to it as wrong. All else, tempers, dispositions, feelings, we may approve or disapprove, but
because, or in so far as they are involuntary, we neither blame nor praise. Only conscience, the deliberate obedience of
conscience, is the proper object of praise.
Since, then, conscience is the standard for each man of morality, and every man merits praise only for obeying his conscience, it is of the utmost importance that the dictates of conscience be true. For it is clear, and only too often proved by experience, that conscience may err, and pronounce this action to be right, when in fact it is wrong. Every man, therefore, has a clear duty to keep his conscience alert and informed. This he does by refraining from adopting any attitude of indifference to moral questions, or from acting as though it were a small matter whether his actions are right or wrong. Again, he takes reasonable care to learn the rules of morality; among Christian families the general and necessary knowledge is gained from parents and schoolteachers in the course of growing-up, but this should be supplemented by reflection on the principles that underlie the moral rules that have been taught. Further, each man, when he finds himself in doubt, should take advice and learn, either from books or from persons whose opinions he has ground to respect. Prayer also is the great instrument for the enlightenment of conscience. "Blessed are the pure in heart, for they shall see God." He who waits on God, and asks for wisdom, will not go unrewarded. Lastly, a man must, so far as possible, avoid the temptations and the consequent darkening of counsel which arise from strong passions, evil habits and bad companions.
That it is a man's duty to obey his
conscience when it is true, and that he merits praise for doing so, is clear enough.
But what if his conscience be false?
Here also it is binding.
For in obeying his conscience a man chooses to do what he holds to be right: if he were to disobey his conscience, he would be
choosing to do what, at the moment, he holds to be wrong. The resultant action would, in the circumstances, be materially right,
i.e. would produce the change in the situation which is objectively right and what God desires, but would be formally wrong, for
it would be the result of an act of the will choosing what was presented to it as bad. We must therefore hold that a man is always
bound to obey his conscience, whether his conscience be true or false, and that, in consequence, he is always to be blamed if he
disobeys his conscience. This is the meaning of St. Paul's phrase "whatsoever is not of faith is sin", i.e. whatever is
done against conscience, against a belief or conviction of right, is sin.
At this point a further question
arises.
Granted that it is always blameworthy to disobey one's conscience, even when one's conscience is in error,
is it always praiseworthy to obey one's conscience, even when it is in error?
Or, in other words, does the sentence "a man is always bound to obey his conscience" mean that a man can never be
rightly blamed if he obeys conscience?
This raises once more the question of ignorance, for error is a form of ignorance.
The classical answer to this question is given by St. Thomas (I, 11, quaest. xix, art. 6).
It turns on the distinction between vincible and invincible ignorance.
Where the error is in any way voluntary, directly or indirectly - that is to say, when the individual either deliberately refrained from learning better, or carelessly omitted to do so - there the error is no excuse for the wrong act. So that he who is thus in a state of vincible ignorance is to be blamed, whether he obeys his conscience or disobeys it. Normally we should find it difficult to accept a position that makes it necessary for a man to be in the wrong, whatever he does. Where a man is thus "perplexed", i.e. convinced that either of two actions, one of which he must do, is wrong, we generally say that in these circumstances one of the two actions is in fact right, or else that he who chooses what he believes to be the less of the two evils is not to be blamed. But in this case of a vincibly erroneous conscience, a man is not genuinely "perplexed", as St. Thomas points out, because he can get rid of his error. This, it must be remembered, is the case of the man who "neither knows nor cares". Sometimes he is actually doubtful, but will not bother to find out; sometimes he is, indeed, in no doubt about his course of action, but a little reflection would have been enough to show him either that the matter was not so clear as he thought or that he was definitely wrong. And this degree of reflection is a duty for him. Thus in acting under the influence of an error for which he is himself responsible, he is to blame. He would be likewise to blame if he acted against his erroneous conscience. But where the conscience is invincible, i.e. caused by no fault or negligence on the part of the individual, there no blame is to be attached.
St. Thomas in his discussion clearly supposes that such invincible ignorance can only be of some accidental circumstance; it cannot be of a moral rule itself. To be ignorant, he says, of something which one ought to know - quod scire tenetur - is always to be vincibly ignorant, for the ordinary rules of morality are so plain and easily learnt that one can only be ignorant of them wilfully or by gross negligence. The two examples that he gives make his point of view clear. If a man's conscience tells him that he ought to commit adultery, then he sins, i.e. is to be blamed, if he obeys his conscience, because the error arises from an ignorance of the divine law of which he ought not to be ignorant. But if a man thinks he ought to have intercourse with this woman, because he thinks that she is his wife and that therefore he owes it to her to accede to her request, then he does not sin, although, in fact, the woman is not his wife, because the ignorance arises through no fault of his. It is clear from this that St. Thomas is only thinking of an ordinary case of ignorance, and not of one of conscientious conviction. This invincible error is one that is indeed invincible at the moment, but one that subsequent enlightenment and information as to the actual facts will always immediately dispel.
A much greater problem is raised by the condition of error about a moral question even after long discussion and reflection; is it possible, for example, for a man to be invincibly ignorant that adultery is wrong, to take the case which St. Thomas himself instances? We have already glanced at this problem, when speaking of the precepts of the natural law and of the possibility of ignorance in regard to them. For St. Thomas, fornication was a thing so obviously wrong that no one could think it right, unless he were wilfully blind to facts and deliberately negligent in considering what is his duty. In the case of polygamy, he did apparently recognize that backward peoples might fail to see the reasons for its condemnation, and might conscientiously approve its practice. In other words, the wrongness of polygamy is not immediately obvious as that of fornication is. In general, traditional moral theology has assumed that invincible ignorance is possible where the matter in question is obscure or doubtful, but impossible in regard to actions that are obviously wrong. Yet even here it is recognised that exceptions are possible. St. Alphonsus, in discussing the matter (Lib. I, Tract n, cap. 4, sub. i, no. 171), quotes Gerson as saying that on occasion there may be invincible ignorance of even the primary principles of the natural law, as when someone is convinced that he ought to tell a lie in order to save his friend's life. And he gives his own opinion in these words, "I have never been able to understand how a man sins, when, after taking all proper steps to inform himself, he still labours under invincible ignorance" (no. 173). He therefore recognizes, it would seem, that, even after long investigation and reflection, a man might arrive at and hold an opinion about the morality of an action that is at variance with the truth. When this happens, the ignorance is invincible, and that not only when there is ignorance that there is any other point of view, as in the cases imagined by St. Thomas, but also in the full face of all the arguments; and face obedience to conscience then merits no blame.
It is of the
greatest importance, however, to know whether the ignorance is truly invincible or not.
The first and most revealing test is given by the question "Did any doubt, at any time, arise?"
If the answer is truthfully "No", it is probable that the ignorance is invincible.
This is the case of those brought up in a closed environment where certain moral rules are taken for granted and never questioned.
If the answer is "Yes", all depends on what steps were then taken. For the ignorance is clearly vincible through
negligence if, in spite of a recognised doubt, nothing was done to arrive at the truth. The easy suppression of a doubt by
reference to the practice of many contemporaries, and the refusal to enquire further, is evidence of moral levity. If, on the
other hand, anxious enquiry followed, books were read, due care and attention was given to the opinions of authoritative persons,
due respect was paid to traditional Christian teaching, and a certain, though wrong conclusion finally reached, then the ignorance
may be judged invincible. Though any individual must hesitate long before he can assure himself that he is right and the world is
wrong, yet it is possible for him to arrive at that conclusion in all honesty. I may, after anxious thought and consultation,
decide that it is my duty to commit a murder (others, that is, call it a murder, I do not. For murder is ex hypothesi wrong, but I adjudge this act in these circumstances to be right, a justifiable homicide), and in that case my error, if it be an
error, is invincible, and I am not to blame if I proceed to action; on the contrary, I deserve blame if I refrain from action.
Such conscientious divergence from an accepted rule of morality raises a special problem for those in authority. On the one hand, the facts of the case forbid them to condemn one who is, in good faith, obedient to his conscience. On the other hand, it is their duty to prevent the spread of error, and to put down wrongdoing. If they take no action against the conscientious dissident - if, for example, they do not arrest and hang him whom they and their subjects alike hold to be guilty of murder - they give ground for the opinion that they do not hold the act in question to be wrong, and others will come to regard it as legitimate. In this way the authorities fail in their duty to conserve society. If, however, they take action, they punish a man as a criminal who is in fact an honest man of good will; one who has obeyed his conscience and who would have been blameworthy if he had not performed this action for which it is proposed to punish him. Yet the good of the whole is superior to the good of the individual. In the interests of society the authorities must take action. Yet any action that they take is not rightly regarded, in these circumstances, as a condemnation or punishment of the individual. He, indeed, merits nothing but honour for his conscientiousness. It is purely and simply a condemnation of the action. It is declaratory that the action was wrong, unlawful, and injurious to society. It is a warning to others not to suppose that this action is right and may be done with impunity. It is a forceful, dramatic and public reaffirmation that the traditional moral judgment in this matter is the true one, and that of the individual false.
This distinction between a condemnation of the individual and a condemnation of his action underlies and justifies many acts of excommunication pronounced by ecclesiastical authorities. A sentence of excommunication may mean that, by reason of his persistent wrong-doing and obstinate refusal to make amends for actions which he knows to be wrong, a person is adjudged unfit to receive the sacraments, or to enjoy the fellowship of his fellow Christians. It is hoped that by being thus excommunicated he may be brought to realise the heinousness of his conduct and be moved to repentance and amendment of life. This is the aim and meaning of the excommunication of a man in bad faith. But a sentence of excommunication may also be pronounced against a person in good faith. In this case it carries with it no stigma whatever. It does not imply that the Church thinks the person thus excommunicated to be a man of evil living, a sinner, and guilty before God. Being in good faith, obeying his conscience, the Church has no doubt that such a man is guiltless, and merits only praise for his loyalty to his duty as he sees it. But his conduct in some particular respect is such that if the Church were to take no action it must appear that she approved it, whereas in fact she is certain that his conscience in this matter is in error. She has her duty to make it clear to her members and to the world at large that the true will of God in this matter is other than that which the person excommunicated thinks it to be. She excommunicates as part of her duty to bear witness to the truth. The excommunication carries with it, in these circumstances, no stigma, because it is only the proclamation that there is here an honest difference of opinion about a moral truth between two parties, both of which are equally devoted to the truth and loyal to conscience. It does not rule out the possibility that, of the two parties, it is the ecclesiastical authorities that in fact are in the wrong.
It should not, however, be inferred from all this that it is the duty of the ecclesiastical authorities to excommunicate in every case of conscientious disagreement, nor yet that, in every case, deference should be paid to good faith and invincible ignorance, and no action be taken. Every case must be judged on its own merits. In general, persons in good faith should be left in undisturbed possession of all their rights as members of the Church, for they are conscientious and obedient to God. But in particular cases scandal, offence to other Christians, and the need to witness against a growing error, justify the excommunication of such meritorious members.
They are meritorious because, as has been said, they are but obeying their consciences, which it is their duty to do, and which if they did not do, they would sin. The gravity of their sin, the degree of their guilt if they had not obeyed conscience, is in proportion to the gravity of the sin that they think they are committing. For example, if the conscientious total abstainer who thinks that to drink a drop of alcoholic liquor is a grievous sin, nevertheless on some occasion drinks a glass of beer, he is guilty of a grievous sin, because he has consented to an action represented to his conscience as grievously wrong. Or again, a man who is honestly convinced that on this occasion it is his duty to steal, sins as gravely in not stealing as the man who steals knowing stealing to be wrong. It is therefore important that actions should not be represented as being more wrong than in fact they are; that people should not be told that things that are trivial or even indifferent are "mortal" sins. It is often a temptation to preachers to magnify the wrongness of certain approaches to sin, in order to prevent people from committing those sins. This is to "set a hedge about the law". Thus we are sometimes told that it is "a sin to go to the pictures" or to the theatre, because of the danger that cinemas and theatres may corrupt our morals. Or, in order to build up that habit of regular constant prayer that is so vital to the Christian life, we may be told that it is a "mortal" sin to omit our prayers on even one occasion. But this practice is dangerous and defeats its own end. It lays on people an unnecessary burden, and exposes them to unnecessary risk of grave sin. For persons who have taken this teaching to heart, and are convinced in their consciences that the actions prohibited are indeed all of them grave sins, are guilty of grave sin if they commit one of them.
We may sum up this section thus.
Conscience is each man's guide to morals.
He must always obey it, even if it is in error.
If the error is invincible, not due to gross or deliberate negligence, he is in no way to blame, but is rather praiseworthy.
If the error is vincible, it is a man's duty to get rid of the error by taking the appropriate measures.
Though the invincibility of the error is always suspect where it concerns a matter of ordinary morality, and the error in such
cases more probably arises from indifference or bad habits, yet in particular, difficult, circumstances such error may indeed be
invincible.
Invincible error, or conscientious nonconformity, is not sinful, and although authority may take steps to make clear its own
disapproval of the particular action dictated by the erroneous conscience, such disapproval implies no condemnation of the agent
himself, and carries with it no stigma.
The duty of obeying an erroneous conscience is such that he who disobeys sins as gravely as he who disobeys a true conscience and
incurs the guilt that he thinks he is incurring.
All this discussion concerns only a
conscience that is certain.
That is to say, we have only considered the man who, rightly or wrongly, is convinced and clear that this or that is now his duty.
But the majority of moral problems arise from a conscience that is not certain.
There can be no one who has not experienced the mental discomfort that comes with doubt as to where duty lies. Moreover, a man
only acts rightly, or conscientiously, when he acts with a clear and certain conscience. A very little reflection is needed to
show that this is so. If I perform an action while I am still in doubt as to whether it is the right thing for me to do or not,
and if, though I am able and have time to get rid of the doubt, I make no effort to do so, it is clear that I do not really care
whether it is right or not, and that I should be equally ready to perform the action even if I knew it were wrong. Again, as long
as I am in doubt, I do not know but what this action may be wrong. If nevertheless I do it, I put myself in immediate danger of
doing wrong. All action while the conscience is still doubtful is thus precipitate and imprudent action. A great deal of moral
theology is accordingly concerned with the means of converting a doubtful conscience into a certain one. The many systems of moral
theology, tutiorism, probabilism, probabiliorism, etc., are so many answers to this problem. What these various systems are will
be explained later.
At the moment it is necessary to say what is meant by "certainty" and "uncertainty".
There is, in the first place, absolute certainty where a thing appears to be self-evidently
true and to admit not even the least shadow of doubt. For example, that murder is wrong, and that to kill my private enemy is
murder, would appear to be an absolute certainty of this kind. In the second place, there is moral or practical certainty. This is
not, indeed, beyond all shadow of doubt, but admits of no serious doubt. For example, one may admit that a proposition is in
general true but be unable to deny that, at least theoretically, circumstances might arise in which it would be false, and that
possibly, though very improbably, such circumstances have arisen in the particular case under consideration. Such moral or
practical certainty is sufficient to enable us to act conscientiously. But it is not always easy to determine whether we have this
moral certainty or no; that is, whether these theoretic doubts are really negligible, or whether they ought to be taken seriously.
Some relief is gained here from the general agreement among moral theologians that a state of moral certainty is reached
(a) when one opinion is recognised to be easily the most probable, so that no serious doubt can be entertained about it, or
(b) when one opinion is seen to be much more probable than its opposite, and that opposite itself seems to be extremely doubtful
and highly improbable, or
(c) when an opinion is not indeed proved, but has never been challenged, so that there is no reason for supposing it to be untrue:
for example, it is thus "certain" that an ordinary man is a law-abiding citizen. In other words, a very high degree of
probability amounts to a moral certainty. It is not necessary to wait for the last step of absolute proof, which, in moral
matters, it is often impossible to take.
When a man is uncertain about his duty, he may be in a position of "strict doubt"; that is, two opposed opinions may seem to him to be equally true, or equally false, and he is unable to give his assent to either. He halts exactly midway between two opinions. For example, an Anglican considering whether it is his duty always to receive Communion fasting, may be exactly equally impressed by the arguments on either side. The antiquity and universality of the rule is balanced for him by its period of desuetude in England. Its manifest fittingness is cancelled out, by the obstacle that he feels it puts in the way of frequent Communion. He cannot make up his mind either way. This position of strict doubt is comparatively rare, however. More often a man finds himself in a state of opinion; that is, he assents to one opinion, though not without serious uncertainty and grave misgiving that the opposite opinion may not, after all, be true. "There is a lot to be said on the other side." It is clear that this misgiving may be of many different degrees. It may approximate on the one side to what is technically called "negative doubt", a mere trifling suspicion for which no real reason can be given, and which should always be ignored and treated as negligible and irrational. Which, indeed, it is, since ex hypothesi no reason can be given for it. On the other hand, this misgiving may be supported by such weighty arguments as to fall only a little short in probability of the opinion to which assent has been given. And within these two extremes there is an infinite series of degrees in which one opinion appears more or less probable than another.
What, then, is a man to do who finds himself unable to make up his mind where
his duty lies?
He may "doubt" in the strict sense, i.e. consider each of two alternatives equally probable, or he may incline with
greater or less conviction to one or the other.
In either case he is far from certain.
What is he to do?
It is important to make it clear that we are here dealing not with a perplexed conscience but with an uncertain one.
The two conditions are not the same.
The perplexed conscience is that of a man forced to do one of two actions each of which he fears may be wrong. For example, a man
may be forced to choose between obedience to his parents and following his vocation. Whichever he does, it seems to him he must
do wrong: either he breaks the fifth commandment, to honour his father and mother, or he ignores the call of God. He cannot make
up his mind that he ought to do. The uncertain conscience is not thus faced with a perplexing choice between two apparent evils,
but only with indecision whether one particular course is incumbent as a duty. In other words, cases of doubt, opinion or
uncertainty concern a choice between a duty and no duty: cases of perplexity concern a choice between two seemingly
irreconcilable duties.
What, then, is a man with an uncertain conscience to do?
Clearly his first duty is to try and arrive at certainty by a direct consideration of the matter at issue. If that fails, he must
fall back on indirect considerations. For example, his Bishop forbids a parish priest to hold inter-denominational services in his
church. He is inclined to think that this order offends Christian charity, and goes beyond what is required by the canons. For
those reasons he is not certain that he is bound in conscience to obey the order. For his oath was an oath of canonical
obedience, and in any case an unjust law does not bind. But he is by no means certain that the Bishop's order is either
uncharitable or uncanonical. He only thinks that it may be, or even that it probably is. But this doubt, so long as it
continues, prevents him from obeying the order with a good conscience. Here he may remind himself that every man is innocent until
he is proved guilty. A Bishop has the right to expect obedience from his clergy, until it is certain that he is demanding
something unjust. So long as the injustice of the order is only doubtful, the clergyman can and should obey. It is, in fact,
certain that he ought to obey, because a mere doubt, however strong, cannot invalidate a certain claim. It is worth noting how
this example differs from a case of perplexity. In the latter case the clergyman would not be doubtful whether the order was
unjust, he would be certain that it was. His doubt would be whether he ought to disobey the Bishop or to offend the law of
charity, whether to be loyal to the Bishop or gentle to Nonconformists.
The solution of the clergyman's doubt turns on the maxim "melior est conditio possidentis"; a doubt does not invalidate a certainty. This is one version of the wider maxim "a doubtful law does not oblige". It is around this maxim that the controversies between the various systems of moral theology have raged. It is possible to deny this maxim absolutely, and to maintain that so long as there is any serious reason to suppose that a law may exist, that law is binding, however much greater the probability may be that the law does not exist. Or, in other words, that it is never right to perform an action that there is some reason to think may perhaps be wrong. This is tutiorism, so called because of its maxim, "always choose the safer course". Its supporters claim that it provides the only safe and prudent guide for an uncertain conscience. Thus to the Anglican wondering if he must always communicate fasting, it replies, "Yes, you must. You are not sure that this law is obsolete. It may still be binding. In that case, whereas to fast cannot be wrong, not to fast may be. It is not right to take the risk or to act with a doubtful conscience. But in communicating with your fast unbroken, you will not be acting with an uncertain conscience. For it is certain that to do so is not wrong." This system is now generally discredited as leading to excessive rigorism. It sets too onerous a load of chains on human liberty, and frequently results in inaction where action would have been better. For example, a soldier in an emergency to which it is reasonable to suppose a previously given order does not apply, must, if he is a tutiorist, nevertheless continue to obey the order, because he is not absolutely certain that it does not apply.
A second system is that of probabiliorism, which, as its name suggests, permits an action to be performed if the arguments in favour of its being a legitimate action are more probable than the arguments against. A third system, aequi-probabilism, goes further and permits the action if the arguments in favour of it are only equally probable. A fourth system, probabilism, allows any action so long as it is probable that the action is legitimate, even if it is more probable that the action is illegitimate.
All these systems rely on the thesis that a doubtful law does not oblige.
The defence of this thesis is as follows.
The binding character of a law is essentially connected with its promulgation. Until a law receives expression, it is only an idea
in the mind of the legislator. And when it is expressed, it must be expressed in the form of law, otherwise it is only a wish or
hope of the legislator. Moreover, it must be expressed clearly; an ambiguous, doubtful and uncertain law is, in respect of the
ambiguity and uncertainty, an unpromulgated law. For what has then been promulgated is not a law, but a doubt, hesitation and
controversy. Thus a Government notice that unnecessary travelling in wartime is undesirable does not constitute a law forbidding
such travel, nor would an order forbidding travel in military districts have any binding force save in so far as the extent and
position of the military districts were specified. As long as there is a genuine doubt and uncertainty whether a particular place
is or is not part of a military district, there is no law forbidding travel to it. Because a doubtful or ambiguous law is, in
reference to the doubt or ambiguity, an unpromulgated law. St. Thomas puts the matter very plainly. In S. T. 1,11, quaest.
xc, art. i, he says, "A law is a rule or measure of action, and is called law (lex) from its binding power (a
ligando), because it obliges to action. A rule or measure is imposed, by being applied to the things that it rules or
measures. And so for a law to have binding power it must be applied to the men who are to be ruled by it. And this application
consists in its being brought to their notice by promulgation. Therefore promulgation is essential if a law is to have binding
power." Again in a little work called de Veritate, quaest. xvii, art. 3, he answers the question, Does conscience
bind? in this way. The command of a ruler in its binding power is parallel in voluntary matters to a bodily act of compulsion in
physical matters. Now, a bodily act only has compulsive power as the result of physical contact with that which it compels. In the
same way a command only has compulsive power where it touches the person commanded. That touching consists of knowledge of the
command. And therefore no one is bound by any command except by reason of his knowledge of that command.
Now it is quite clear that where a man doubts if there is a law, he cannot be said to have knowledge of the law, and therefore, as St. Thomas shows, the law is not binding on him. For all that he knows is that there may be a law: what he does not know is that there is a law. This reasoning applies as much to natural law as to positive human law. It is true that the natural law is not promulgated in the ordinary sense. Knowledge of it, or the capacity for knowledge of it, is naturally inherent in the human reason. This takes the place of promulgation. Where the natural law is plain and clear, where it is ignored or unknown only by reason of deliberate blindness, there it has been promulgated and is indubitably binding. But where the law is difficult and obscure, where it is unknown through an invincible ignorance, there it may justly be held not to have been promulgated, and so not to be binding. An example used (I, i, 74 end) by St. Alphonsus may make this clear. If it be granted that usury is forbidden by natural law, yet it is not always clear whether a particular contract is usurious. The obscurity and ambiguity of the natural law itself robs it of its binding power in this instance. For when a man doubts whether this contract is usurious and so forbidden, a law of which the existence in this instance is uncertain cannot bind him. For as with a human lawgiver, so also God wills us to obey His will as He has revealed it to us (St. Alphonsus, I, i, 70, quoting Gerson). He cannot expect us to obey a will that He has not revealed. Wherever, then, there is a genuine doubt whether an action is or is not forbidden or enjoined, it is reasonable to apply the maxim "a doubtful law does not oblige". Such at least was the claim of the older probabilists. But it has not been allowed.
By general agreement the maxim may not be applied in the following cases. Where the doubt does not concern the mere legitimacy or illegitimacy of the action, but its validity or efficacy, it is never allowable to follow a merely probable opinion. For example, a navigator entrusted with the duty of bringing a ship into port is confronted with a choice of two alternative routes; one is arduous but certainly safe, the other is easier but involves possible, though not certain; danger. The navigator asks whether he may take this easier route. The doubt here is not really concerned with whether he may or may not do so, but with whether the route is safe or not. If it is certainly safe, of course he may take it: if it is not safe, he may not, because then the taking of it will not achieve his end, which is to bring the ship into port. The maxim, a doubtful law does not oblige (with its corollary that a probable opinion against the law may be followed since it makes the law doubtful), rests on the fact that the obligation of the law depends on, and is in part created by, our certain knowledge that the law exists and covers whatever particular case we are considering. But the validity or efficacy of an action, unlike the obligation of a law, does not in any way depend on our knowledge, but is part of the nature of things: it either is or is not, and our thinking will not make it otherwise. The fact that the navigator thinks that the easier route may be safe, does not make it safe. For him to take that route manifestly endangers the successful accomplishment of his duty.
Or the matter may be put in this way. Wherever we have a clear and certain duty to achieve a particular end, we are morally bound to choose the safest means of doing so, and are not at liberty to follow a merely probable opinion; and wherever there is doubt which of two means is the safer, we must choose that which is more probably safer. In order to bring out more clearly the difference between a doubt about the validity and a doubt about the legitimacy of an action, let us suppose that there are two navigators in our ship, which was a German ship, sailing in wartime. The one is a German officer, whose duty it is to bring the ship home to port. The other is an English prisoner, who has no such duty. The Englishman is called in to advise because of; his superior knowledge of the local waters. Both navigators know that one course is safe, but are doubtful about the other. The German's doubt as to which course to advise is a doubt about the efficacy of the course. The Englishman's doubt is as to whether it is lawful for him to deceive the enemy by advising a course which perhaps he knows is unsafe. Is he still bound by the law of a navigator's duty, or is he, in these circumstances, free from that law? If there is a probable opinion that it is lawful to deceive the enemy, even at the cost of the lives of the sailors who trust him, then he may follow that opinion, just as the German is not free to follow the probable opinion that the easier course is safe.
Probabilism, then, does not apply where the doubt concerns the efficacy of an
action to attain an end that we have an absolute duty to attain. That is to say, the higher law of a clear duty enjoins the
necessity of always choosing the safest course. The most important spheres, where this clear duty operates, are:
(1) THE SACRAMENTS. There is a clear duty to receive or administer the sacraments. An invalid sacrament is no sacrament.
Therefore, wherever a doubt concerns the validity of a sacrament, it is not legitimate to follow a merely probable opinion. We
must choose the safest course. And if the certain conditions of a valid sacrament are unobtainable, we must abstain from the
doubtful sacrament, except in a case of grave necessity. In such a case there is an even higher law than that of the sacraments,
the law of love, which clearly and absolutely requires us to take no risks with our own or our neighbour's spiritual welfare. If,
then, the reception of a sacrament be necessary to us or our neighbour, and no certainly valid sacrament is to be had, we must
fall back on the doubtfully valid sacrament, to be administered conditionally, i.e. on the condition that, and in the hope that,
it is valid. A clear example of this is to be found in the Roman Codex, canon 746. This canon says
(a) that no infant is to be baptised in the womb as long as there is a probable hope of its being able to be baptised after birth,
and
(b) that an infant baptised in the womb, if born alive, is to be conditionally re-baptised. The reason for this is clear. Baptism
in the womb is not certainly valid. There are strong reasons of probability that it is valid, but they do not amount to certainty.
Therefore one may not baptise in the womb except in case of necessity. But in such a case one must baptise, because since there is
a probability that such a baptism is valid, it is manifestly safer to baptise than not to baptise. On the other hand, if the child
survives and is born, since its baptism is not certainly valid, it must, for safety, be again baptised, conditionally, i.e. with
the saving clause "if thou art not already baptised". In all questions, then, affecting the validity of a sacrament, we
must always choose the safest course, and no degree of probability, however great, is sufficient to excuse from this duty.
(2) We have already referred to that law of charity which overrides even the duty of abstaining from receiving or administering a doubtfully valid sacrament. This law operates generally in connection with all matters of religion that are absolutely necessary to salvation, for we have a clear duty both to ourselves and to our neighbours to promote spiritual welfare and to avoid spiritual danger. Thus, for example, a man may consider it a probable opinion - for the Quakers and many others hold it - that the reception of the sacraments is not necessary to salvation. But unless, like the Quakers, he is certain that this opinion is true, he may not follow it. For he has an absolute duty, in obedience to God, to do what is necessary for salvation. It is only probable, for him, that the sacraments are unnecessary. He cannot, therefore, safely ignore them, for to do so is to risk failure to attain salvation, and that is failure in his bounden duty.
(3) The law of Justice imposes on us the duty not to injure the rights of another. (Unless some public advantage or private necessity counterbalances and outweighs the individual's claim.) When, therefore, a doubt arises whether a particular action will or will not cause our neighbour injury, we are not permitted to take advantage of the doubt. For example, I am wondering whether I may pass on to a friend a piece of information detrimental to a third party. I hesitate because it is not certain that the information will in fact do him any harm; it is not even certain that it is not already public. Yet, since it is uncertain that I can fulfil my duty not to do my neighbour harm if I speak, but certain that I can if I do not speak, I am bound to choose this latter safe and efficacious course. "Similarly, where by reason of any office or contract a man is bound to promote his neighbour's good in some particular respect, he may not do anything which may probably or possibly result in his failure so to promote it. For instance, a trustee may not invest the capital of his ward in stock which is only probably safe, nor a doctor administer a remedy to a patient which is less probably effective than another. A lawyer may not give a client doubtful advice, but must point out to him the course which will more probably promote his interests. Again, a judge who has a strict duty to administer justice, where the interpretation of a law is doubtful, must follow the more probable opinion, for not to do so would be to risk failure in his duty to administer justice, and would be to take the seemingly less efficacious course.
Wherever, therefore, the doubt concerns not the legitimacy but the validity or efficacy of the action in promoting an end which we have a certain duty to promote, the maxim "a doubtful law does not oblige" is not applicable or even relevant. It is only applicable where the doubt is about the existence of the law or the extent of its obligation. Such doubt makes the law itself uncertain, and the obligation arising from it equally uncertain. And an uncertain obligation is no obligation.
The point of controversy between the various systems of Moral Theology (other
than tutiorism) turns precisely on this question of the degree of doubt that renders a law uncertain and so makes applicable this
maxim "a doubtful law does not oblige". All are agreed that
(1) if it is very much more probable that the law exists, then the law is almost morally certain, and must be obeyed. For example,
if after carefully considering all the arguments on both sides, it is clear to me that it is very much more probable that it is
wrong to marry after divorce, then I must take the safer course and not marry again. This I can do with a clear conscience. For it
is quite certainly not wrong not to marry.
(2) If there is even a small balance of probability against the law and in favour of freedom, then quite certainly the law is
doubtful, and I can ignore it with a clear conscience. In other words, however strong the arguments may be that what I propose
to do is wrong, if nevertheless it is more probable, even though only in the smallest degree more probable, that what I propose is
not wrong or forbidden, then I may do it. On this all are agreed. But supposing there is a slight but clear probability in favour
of the law, what then? Probabilists maintain that in that case the law is certainly doubtful. For although there are arguments in
favour of the law, and those stronger than the arguments against the law, yet these latter are also strong and are not altogether
destroyed, and therefore it is as certain as anything can be that the law is doubtful. A man who after careful consideration of
a moral problem thinks that it is just more probable that a particular action is wrong, but is yet conscious that there is almost
as much to be said for the thesis that it is right, is clearly not certain that it is wrong. Probabiliorists and
aequi-probabilists, on the other hand, argue thus. An opinion is either so slightly more probable than another as to be doubtfully
more probable and therefore really only equally probable, and in that case it is certain that the law which it supports is
doubtful; or it is, however slightly, yet certainly more probable than another, and in that case it is notably and clearly more
probable and therefore amounts to a practical certainty and makes the law practically certain. For example, if I think that it is
just perhaps more probable that it is wrong to marry after divorce. That means that I find the arguments in favour of such
marriage almost equally strong. Then the law may indeed be said to be uncertain. But if I find the arguments against such marriage
to be definitely stronger, say, in one particular point, then I find it certainly more probable that such marriage is wrong, and
if I think that a thing is certainly more probable, I think it to be almost morally certain. To this probabilists reply that this
is to ignore and obliterate a very common state of mind which experiences infinite degrees of probability between equal
probability and moral certainty. It is not at all the same thing to see clearly that one view is more probable than another, and
to see that it is clearly, evidently and quite certainly more probable.
It would seem that this is now the only point of controversy between probabilists and probabiliorists and aequi-probabilists. It is only in this very restricted sense that probabilists allow it to be lawful to follow the less probable opinion, against the more probable: namely, when it is certainly, but only slightly more probable that there is a law, it is yet legitimate to treat the law as doubtful and therefore as not binding. It will be noticed that, throughout, the probability of one opinion is balanced against the probability of another, and only in this last restricted field is it allowed that an opinion may remain probable, even though the opposite opinion is more probable.
Thus a long road has been travelled from the position of the earlier probabilists. They maintained that so long as there are solid reasons for holding an opinion, that opinion is probable, no matter how weightier and more probable may be the reason for holding the opposite opinion. After all, they argued, so long as an opinion is probable, its opposite cannot be certain. If it is not certain, it is uncertain, and an uncertain law does not oblige. This argument needs to be qualified by the admission that the probability of one opinion may be completely destroyed if it rests upon an argument that is contradicted by the arguments for the opposite opinion. To take an example, again, from infant baptism in the womb. St. Thomas Aquinas denied the validity of such baptism, on the ground of the physical impossibility that the water can be made to touch the infant. To the old extreme form of probabilism this is enough to establish the invalidity of baptism in the womb as at least a probable opinion - it was held by Aquinas. The development of medical knowledge and skill has removed this physical impossibility. The whole weight of St. Thomas's argument, therefore, is destroyed. Yet the older probabilism would still have maintained that the invalidity is a probable opinion, relying solely on objective probability - that is, the fact that a reputable authority holds the opinion. But this is manifestly absurd. When this qualification, however, has been made, there does seem to be some force in the old probabilist contention. If there is a solid reason for thinking that a particular action is right, then it cannot be certainly wrong. It may be more probable - even much more probable - that it is wrong, but it is not certainly wrong. Then there can be no certain obligation to abstain from that action. And therefore it is legitimate to perform it.
Yet it is clear that this offends most people's moral sense. To follow a probable opinion against one that is much more probable, seems indefensible. This is because, as the later probabilists have seen, what is much more probable is almost certain. And to ignore the almost certain, and treat it as simply uncertain, is moral juggling. To argue thus: "Although I see that there is much more to be said for the wrongness of this act than for its rightness, yet its wrongness is not absolutely proved, therefore I may act as if it were certainly right", is seen to be special pleading, for all that it is thrown into the form of the syllogism:
What is not certain is uncertain,
What is uncertain does not bind.
This is uncertain, therefore This does not bind.
Yet when the probability is only slight, though certain, the probabilist case is very strong. A slight probability by no means amounts to a certainty or even approximates to it: it leaves the mind still in doubt, and for that reason a slightly more probable law is a doubtful law.
Nevertheless, great care and prudence is necessary in determining when the greater probability in favour of the existence of a law is so slight as to leave the existence of the law in doubt, or, to put it in another way, to leave the contrary opinion still probable. For great laxity and scandal may follow if opinions which are really only doubtfully or slightly probable are treated as being solidly and really probable. In determining what opinion may be regarded in practice as sufficiently probable, it is first necessary to consider its intrinsic probability. That is to say, the grounds on which the opinion is held, the arguments by which it is supported, and the difficulties and inconsistencies, if any, involved in holding the opposite view. In the second place, attention may be paid to its extrinsic probability, that is to say, to the number and weight of the authorities that have held it.
Accurately to weigh and appraise the intrinsic probability of an opinion - unless it is simply about a matter of fact, such as whether a debt has been paid or not - requires considerable skill and experience in the handling of theoretical moral problems. Those who are able to undertake it will determine that an opinion is probable if, after all relevant questions have been carefully considered and the opposing arguments carefully weighed against each other, it is, though uncertain, yet supported by weighty reasons, and its opposite is, at the most, only slightly more probable.
Extrinsic probability may be judged by anyone. Simple people may safely regard as probable an opinion held to be such by persons whom they rightly respect for their knowledge and judgment, unless indeed there are obvious reasons for doubting it, e.g. that it is contrary to the common opinion and practice; in that case they should enquire further. More experienced persons, and especially the clergy, have a duty to consult as many authors as they can, and weigh their respective merits, and to come down on the side which seems best supported by the arguments, though they may still hold the opposite opinion to be probable if it is maintained by reputable authors whose arguments in its favour have not been completely destroyed by the arguments for the opposing opinion. In practice, an opinion may be called extrinsically probable if it is widely asserted to be such, or held to be such by some outstanding teacher like Aquinas, or five or six authors of good reputation hold it to be true or at least tenable. On the other hand, an opinion is not extrinsically probable if it is supported by but one or two, or even if it be supported by many, if they have only treated the matter in passing, or have relied on arguments which have been overthrown by later writers. Nor is an opinion probable if its opposite has been declared to be true by the Church. For Roman Catholics the Church has spoken finally on a great number of issues. For Anglicans, there are authoritative statements on comparatively few questions, and the rest are left to the conscience of the individual, to decide for himself what is his lawful course. Hence the importance for Anglicans of a correct understanding of the principles of probabilism; in what respects and within what limits they may use it as a guide for their own conduct or for that of others.
In guiding his own conduct, a man must first decide whether he is morally certain that the action he is proposing to perform is right or not. If he finds that he is not certain, it becomes his duty to examine the question with a degree of deliberation and care proportionate to its importance. If on such examination he finds that his hesitation was groundless, that it was, for example, a mere momentary doubt or suspicion for which he can give no reason, he may ignore it. If, on the other hand, the doubt appears solid and well grounded, it then becomes his duty to attempt to resolve it by direct argument. Galling to his aid such learning and skilled advice as he can command, he must compare the opposing opinions. If by so doing he finds that one opinion is clearly and considerably more probable than another, he has arrived at a virtual or moral certainty that that opinion is the true one, and it is his duty to act upon it. If he finds that on the whole there is more to be said for the legitimacy of the action than there is to be said against it, but only a very little more, although he is by no means virtually certain that the action is right, yet he is certain that its wrongness is truly and solidly doubtful. He is therefore morally certain that he has no duty to refrain from the action. Provided always, that the doubt concerns the legitimacy of the action and not its validity or efficacy. Lastly, and with the same proviso, if he finds that on the whole there is rather more to be said against the legitimacy of the action than there is to be said for it, here again the probabilist considers himself certain that the illegitimacy of the action is really doubtful and that in consequence he is not bound to refrain from it. In this he will be differing from the aequi-probabilist, who considers that the illegitimacy of the action is quite certain, unless it can be shown that the arguments in favour of its legitimacy are at the least equally strong. He will be differing also from the probabiliorist, who demands that the arguments in favour of legitimacy must be positively stronger, before he can feel himself at liberty to perform the action.
In guiding the conduct of others, the position is somewhat more difficult. But attempting to answer a question that one has not been asked sometimes creates a good deal of unnecessary difficulty and confusion. If the question is "Do you think this action is lawful?" it is enough, and it is one's duty to say that it is certainly or more probably lawful, or certainly or more probably unlawful, and for such-and-such reasons. But if the questioner does not ask for my opinion but asks simply "Is this action lawful?", then my personal opinion is largely irrelevant. It is the facts that are demanded, and the answer must take one of these forms. "The action is certainly illegitimate (or legitimate) and has been authoritatively pronounced to be so." Or, "There has been no official pronouncement on this point, but no reputable authority has ever held it to be legitimate (or illegitimate) and I know no arguments which would support such a view. It must therefore be regarded as certainly right (or wrong)." Or, "This is a matter which has been much debated. The balance of probability both from the arguments themselves and from the general reputations of the authors who advance them is strongly in favour of (or against) the legitimacy of this action. So strongly, that you may take it as morally certain that the action is right (or wrong)." Or, "The balance of probability on the whole is slightly against the action. But I am bound to tell you that the balance is very slight; persons of repute hold the view that the action is lawful. Unless you take the view that it is never right to act when the balance of probability is, however slightly, against the lawfulness of the action, this is a case where you may properly say that the action is so doubtfully wrong that you have no duty to refrain from it."
We may conclude with three examples.
(1) A priest receives information that he was born out of wedlock. If the information is true, it would mean that his ordination,
though valid, was irregular and illicit, and that he is debarred from the exercise of his Orders, so that any future sacerdotal
act would be wrong, unless and until he gets a dispensation. But is the information true? So far as he can learn, it falls well
short of proof, and that he is legitimate is solidly probable. Since the question does not involve the validity of his ordination - for
that is valid in any case - he may take the benefit of the doubt. This is a simple question of doubt of a fact.
(2) A penitent admits that he is in the habit of making his Communion after breaking his fast, but has been made uneasy in his conscience for some reason; he does not think there is really anything wrong in communicating thus, but he is not certain. The confessor, though he himself may be sure that it is more probable that the ancient custom of the undivided Church is binding on all Christians, or even that it is much more probable, must also admit that it is seriously probable that in the Church of England it has lapsed. Accordingly, though he may advise the penitent to observe this rule, if the penitent chooses to adhere to his existing practice the confessor must submit, since the opinion on which the penitent is acting is seriously probable and does not affect the validity of the sacrament.
(3) An Anglican considers whether he may use contraceptives. He is aware on the one hand that a great many people use contraceptives without scruple or hesitation, and on the other that "old-fashioned" people condemn the practice as "nasty". The knowledge of this difference of opinion makes him uncertain and doubtful, and being a conscientious person, he feels bound to enquire further before adopting the practice himself. He finds, it may be, at first, that those who condemn contraceptives can give him no reason for their attitude beyond an instinctive repulsion and conviction that it is wrong. The supporters of the practice, on the other hand, bring forward clear and even moving arguments, based on expediency - the necessity, in the interests both of parents and children, of limiting the size of families, and the great hardship involved in complete abstinence from sexual intercourse, and in some circumstances its "moral impossibility".
At this stage of his enquiry the honest Anglican may well feel that the balance of probability is in favour of contraceptives. Yet the depth and firmness of the conviction of the opponents of their use leaves him still unsure that this balance is certain, the more so as he recognizes that the great majority of the supporters of the practice are not persons whose moral principles and judgments command any great respect, being indeed for the most part persons of markedly less moral integrity than the opposers of the practice. He therefore decides to try to find out what arguments in fact underlie their strong but unreasoned conviction. In the course of this attempt he quickly discovers that the Roman Church explicitly condemns the practice, and bases the condemnation on the thesis that the practice is unnatural. This is an argument traditional from the Middle Ages, or longer. Deliberately to frustrate the purpose for which an act exists is irrational and unnatural. And that is what the use of contraceptives does. Further, while the use of contraceptives may be expedient for individuals - i.e. increase their happiness or prevent their suffering - it is even more inexpedient for society as a whole, and since the good of the whole takes precedence over the good of the part, the practice must be condemned.
It may be that he is so impressed by these arguments as to conclude either that the use of contraceptives is certainly wrong, or that it is so much more probably wrong that the probability of its being right is too slender to justify his taking the benefit of the doubt. On the other hand, though impressed by these arguments, he may still feel unconvinced that the use of contraceptives is certainly wrong. Perhaps he does not fully understand the arguments about their being unnatural, perhaps he considers that a demand that two married people should, in certain circumstances, wholly abstain from sexual intercourse is also unnatural, in a different way, and too hard an opinion to be tolerated. In short, he may conclude that while it is certainly much more probable that contraceptives in general are wrong, it is also really probable that in some abnormal circumstances they may be right. Here he finds himself in agreement with the Lambeth Resolution of 1930.
But before he can himself use contraceptives with a certain conscience, he must decide what kind of abnormal circumstances they are in which it is thus probable that the use of contraceptives is right. It will be clear at once that the circumstances which most people hold to justify their use are not at all adequate. To start with, they are not abnormal. Secondly, they are based on a love of comfort, and even luxury, which he cannot bring himself to approve. Thirdly, they reveal a very inadequate view of the purpose of marriage, and of the nature and requirements of family life. Fourthly, they issue from a crudely materialistic outlook on life in general, which considers the welfare of children entirely or excessively from the point of view of wealth and social standing. If his own desire to use contraceptives has nothing further to say for itself than this, he cannot hold that there is a serious probability that it would be right for him to use them. There is not even an extrinsic probability. For his case is clearly not the sort of case which the resolution of the Lambeth Conference envisaged. He cannot claim the approval and authority of that body.
But it may be that in his case there is something further. Perhaps he himself
suffers from a hereditary transmissible disease. Perhaps his wife is unable to bear a further child without grave danger to her
life. Here, surely, is an abnormal circumstance, in which there is a real probability that the use of contraceptives is right.
Their rightness, even so, is by no means certain, because of the strength of the arguments on the other side. It is, he thinks, if
anything, rather more probable that their use is wrong. Yet if, after such careful enquiry, he finds that there remains a real
probability that in these circumstances their use is right, he may take advantage of the doubt and hold himself free to use them.
But always it must be remembered that if he thinks it much more probable that their use, even here, is wrong, he may not benefit
from the doubt which still remains; for then their rightness has a merely insignificant probability about it, their wrongness
amounts almost to certainty.
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